Speak softly but carry a big stick

This really works, and makes sense.

It seems a long time ago that the barrister friend who trained me said that mediation would be coming to the small claims track.  Perhaps it did not happen as quickly as one might have liked but, hey, - better late than never.

I would like to see consistency amongst courts.  It’s not a big deal, but here is a comparison.

A couple of months ago we had allocation directions from Bournemouth in a case which kicked off on the fast track but quickly moved downstairs as the defendants admitted and paid about 90% of the claim.

We had a long list of directions on allocation, one of which was that we should mediate – and if we didn’t, that failure might be considered “unreasonable conduct” within the meaning of CPR 27.14, opening up potential liability to a costs order.

I have no problem with that.  We were always willing to mediate, as was the defendant.  We did it within a month and reached a very sensible and satisfactory conclusion.

Recently I had a short and less detailed allocation notice from the Yeovil County Court.  The approach is slightly different.

We were told in this case that the judge thinks it might be suitable for mediation and if we would like to give it a try then we ought to contact the Mediation Service.

That’s it, basically.  We went for it because in most cases it makes sense. The defendant didn’t but there was no apparent pressure on him to do so. Trial looms.

There was a further contrast with a case in the same court a year ago where we, for claimant, said we would be prepared to mediate and the defendants said they would not.  In that instance another district judge issued a direction requiring the defendants to write and give reasons for their refusal.

Almost inevitably we did mediate the case and settled - not on the day but shortly afterwards.

Perhaps we should just look upon these (varying) schemes currently as Beta versions in the characteristically rushed, yet collaborative, way in which we make rules and build procedures in the present day.

But so many combatants will only listen to the softly spoken word if they see someone else in the arena carrying a big stick.

Money down the drain awards 2011

The Treasury Solicitor's office has led the pack this year for wasting public funds sending communications by every conceivable medium but there's a late entry from the Independent Safeguarding Authority, or ISA.

Last Friday we had by e-mail copy of an application to an employment tribunal for an order extending time for compliance (that's another story) with a non-party disclosure order. Happy with that. Hats off to Exeter ET incidentally for the speed and efficiency of dealing with it - administratively and judicially.

We also had the letter and enclosures from the ISA by fax. Well, OK, it was urgent I suppose.

This morning my practice manager has been to the sorting office to collect a recorded delivery Signed for secure envelope that couldn't be delivered whilst we were closed over Christmas. I open it to find the same pages that I've already had by e-mail and fax - sent to me after the event.

Both sides knew it was all done and dusted because the ET e-mailed us an order (and as far as I can see, didn't waste time and money posting a copy).

As I've said before it's the tip of an iceberg. As a nation we'd probably save significant time and money if someone would encourage some departures from "the way we've always done it".

A real hustle

If you've ever watched The Real Hustle you've probably been amazed at some of the things that people can get away with if they have the confidence to try. Who dares wins?

The latest scam from liability insurers is a bold attack on the fixed costs schemes that presently apply to a number of categories of personal injury claims, starting with low-value road traffic - or “Portal” - claims.

This comes on the back of the announcement of a ban on referral fees for which of course insurers quickly voiced support, hoping to distract attention from the extent of their sly profits that were suddenly exposed to the daylight.

Now they seek to turn it all to their advantage by arguing that since some, not all, claimants’ solicitors will no longer be paying referral fees to acquire the business, the fixed costs should be reduced.

Which of course will produce a saving for insurers – on ALL claims, not just those that might have been bought by payment of a referral fee.

That fact demonstrates where the logic of the present argument crumbles. It won’t just be lawyers who previously paid for claims continuing to run them in the future. There will be all the others, like me, who never did and whose overheads don’t change as a result of the ban.

Those overheads still include other forms of marketing – areas in which many firms who previously purchased from claims management companies will find themselves spending similar amounts in the future as they look for alternative business leads.

So, the insurers’ point is a duff one regardless of how the original fixed-fee deal was conceived and structured.

Perhaps that’s why we are hearing and reading the contention that the existing scheme factored in an allowance for referral fees. The MOJ will quickly swallow it where there is no resource or political will to challenge the insurance industry.

Representatives of respectable and fair players such as APIL are quite clear in their account that referral fees formed no part of the Portal fees deal of which they were one of the architects, along with insurers. Why ever should it have done?

The costs were calculated having regard to the amount of time required to run the claims and the expense of it.

That has proved inadequate, many will say, because of the antics of insurers looking to exploit loopholes and push the bounds as they so often do. No wonder they say the system works well – pity nobody has seen them reduce levels of premia as a result.

One comes to expect all that but this latest assault is a serious threat to justice and the MOJ needs to wake up to it. Bear in mind that the insurance industry wants to extend these lower cost claims environments to higher value and more types of injury claim.

If it sounds too good to be true, it probably is.  

Claims theft

Yesterday I received nineteen identical copies of an e-mail from a claims management company.

The cheerful message - entirely out of the blue - vaunted my free listing on the website.

Not just that – I may add further details, update and improve my profile and it will still not cost me anything!  I can even send them a description of my firm and its specialities, which they will upload.

The message closes with “if you have any questions or are looking for personal claim (sic) referrals, please also feel free to get in touch”

Oh, and the customary “Kind regards” from “The Team” none of whom I know from Adam.

Miserable bastard aren’t I? A bit of free advertising and that’s my attitude to it.  Bah humbug.

So, how many more of you have had this sort of gift and stopped to think why such generosity? 

Well it’s simple and really quite annoying when you think about it.

If you spend enough time and effort, enhanced with some real attempts at search engine optimisation, you will get your firm’s name up the listings.  The more focussed the search, the more likely that the majority or all of your listings appear at the top of the Google list.

So your free listing on this site will generate a hit and maybe the person who is looking for a personal injury lawyer will follow the link to this site.  Maybe they will get in touch with details of their claim.

Where will the business go then?  Remember, you have decided that you will just enjoy the free publicity and not pay referral fees.

If you have not thought this through before, think about it now and just consider how many “free listings” you have.  Take active steps to get them removed and write to the Ministry of Justice Claims Management Unit at info@claimsregulation.gov.uk

Parasites.

Cashflow

It is a slow day in a little Greek Village . The rain is beating down and the streets are deserted. Times are tough, everybody is in debt, and everybody lives on credit.

On this particular day a rich German tourist is driving through the village, stops at the local hotel and lays a €100 note on the desk, telling the hotel owner he wants to inspect the rooms upstairs in order to pick one to spend the night.

The owner gives him some keys and, as soon as the visitor has walked upstairs, the hotelier grabs the €100 note and runs next door to pay his debt to the butcher.

The butcher takes the €100 note and runs down the street to repay his debt to the pig farmer.

The pig farmer takes the €100 note and heads off to pay his bill at the supplier of feed and fuel.

The guy at the Farmers' Co-op takes the €100 note and runs to pay his drinks bill at the taverna.

The publican slips the money along to the local prostitute drinking at the bar, who has also been facing hard times and has had to offer him "services" on credit.

The hooker then rushes to the hotel and pays off her room bill to the hotel owner with the €100 note.

The hotel proprietor then places the €100 note back on the counter so the rich traveller will not suspect anything.

At that moment the traveller comes down the stairs, picks up the €100 note, states that the rooms are not satisfactory, pockets the money, and leaves town.

No one produced anything. No one earned anything. However, the whole village is now out of debt and looking to the future with a lot more optimism.

And that, Ladies and Gentlemen, is how the bailout package works.

Waffling bankers - again!

Two significant points of interest arose in the course of a property purchase during the last few days - one topical and the other - well, incredible.

Client buying residential property with the assistance of a mortgage from High Street Bank represented in this particular transaction by associated firm because we don’t deal with residential property.

Father and his son are occupiers of the property, but not parties to any of the transactions.  Bank, very reasonably, requires signed forms of disclaimer of equitable interests.

There’s some confusion about whether or not the two occupiers are required to seek independent advice but rather than debate the point where time is pressing, the two head off to another law firm where they are told “we can’t help, because you are not our clients”.

An approach to another law firm, another established conveyancing practice, elicits a “we would like to help but we are sorry we can’t”.

They take a little more trouble to explain that they don’t get many requests for this type of exercise now and in view of the amount of time required to comply with regulatory and other requirements, have decided as a matter of policy not to do it.  It isn’t cost-effective or worthwhile from a risk perspective. 

I find that entirely understandable.  These are the sorts of reasons why we choose not to deal with any residential conveyancing.

These were two firms that have established practices in that field, choosing not to undertake the particular task for similar reasons.  This is for privately paying clients who, within reason, were not in a position to haggle - they just wanted the job done.

Trite point but this doesn’t augur well for the survival of poorly paid legal activities in various guises.

Not much to say about the bank in all that?  Well, don’t despair because the bank ultimately stole the show.  How?  Breathtakingly!

My associate did all the necessary and submitted the report on title to the bank and then made arrangements for completion with the seller’s London lawyers, subject to arrival of funds.

Whilst waiting for the mortgage monies to arrive, he then took a call from the purchasing client to report that she had the mortgage proceeds of more than £¼m in her personal bank account, courtesy of the lending bank.

The bank’s explanation?  That’s the procedure - the monies go to the customer who then passes them on to the solicitor.

The solicitor of course then completes the transaction, obtains the documents of title and is able to complete the bank’s security which protects its investment...

We only act for the good guys, of course, but in other circumstances that bank might have been lucky that the telephone call didn’t come from a luxury hotel or cruise ship in the Caribbean. 

It’s good to see that things have tightened up during the last three years.

Life's little dramas...

400 people set to lose their jobs as Aviva announces closure of its offices in Bristol, according to BBC News West this evening.

I suppose at some stage they'll attribute this to "the rising cost of claims" and blame accident victims' solicitors above all others?

We can be sure it won't be anything to do with shareholders' returns, executives' remuneration, the end of cheap off-shore labour, or the loss of referral fee income streams.

The announcement reportedly comes "at the conclusion of a joint-venture with RBS". Another role model if ever there was. I do hope they're still managing to pay their former CEO's pension of £938 per day.

And they wonder (they say) what all those people were whining about outside St Pauls Cathedral.

Just one of "life's little dramas" ?